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PUBLIC INTERNATIONAL LAW Prof. Goldman Spring 2013 WCL Outline Overview: I. Intro What is Intl Law a.

a. Definition II. Sources of Intl Law a. Treaties b. Customary International Law c. Customary International Law & the US III. International Dispute Resolutions a. Negotiation, Mediation, Conciliation and Arbitration b. International Court of Justice IV. Recognition of States & Governments a. What is a State b. Recognition and Succession V. International Human Rights & State Responsibility a. State Responsibility for Injury to Aliens b. Human Rights and International Criminal Law VI. Jurisdiction: Allocation of Legal Authority Among States a. Jurisdiction to Prescribe i. Territorial Jurisdiction ii. Prescribe Nationality iii. Protective Principle iv. Passive Personality v. Universal Jurisdiction b. Jurisdiction to Enforce VII. Sovereign & Other Immunities a. Sovereign Immunity b. Diplomatic and Head-of-State Immunities VIII. Act of State Doctrine

I. Introduction: What is International Law? A. The Definition of International Law - Public International Law governs activities of states in relations with other states/governments. Sources: Treaties & Customary Intl Law (CIL) - Private Intl Law governs activities of individuals, corporations, other private entities across national borders - 3rd Restatement of Foreign Relations Law (1987), Sec. 101 (CB p.2) - Statute of the International Criminal Court of Justice (ICCJ), Art. 38 (CB p.3) o two ways to create new int'l law: 1. Treaties & 2. New Customary Law. o In addition, lists as evidence (not source) of law: 1. General principles of law recognized by civilized societies (extrapolating from state law) and 2. Treatises. o NB: ICJ like civil system: no stare decisis; though precedent is still relevant, judicial decisions are not a source of int'l law (except in human rights context) - Restatement Sec. 102 (p.3) - Treaty provisions may give rise to CIL, eg non-signers follow what is agreed to in the T (custom) o Example: beginning of Amb./Dip. Immunity, started as custom, now binding & codified by T - Creation of int'l law: CIL Treaty agreements - Treaty is primary means of law creation bc less uncertainty. - NB: where a provision specifies choice of law (ie, Southern District NY), thats NOT a treaty - Parties to Treaties may only be states, otherwise just contracts. Also, must be in writing. - Most disputes the US today tries to resolve wholly by application extraterritorially of US law (ie either do business with Iran or with us, not both). Typically these disputes come down to jurisdiction. Most clashes are with NATO allies and largest trading partners. - Policy and politics are essential to understanding the context of intl law: Intl law not static, doesnt function in a vacuum. B. Legitimacy: International Law & the Compliance Challenge: is it really Law? - Threshold issue for intl law is its legitimacy: o No executive/legislative branches and no police or enforcement through force o States must consent to be sued, due to the fiction of sovereign states on which its based - BUT: o Law derives its force not just from police and courts o Countries comply w/ legal norms bc of expectation of reciprocal behavior and effective sanctions o Intl travel, econ interdependence, and transnational cooperation signs global anarchy not a threat - Legitimacy largely built on acceptance. - Positivist view: no state can be compelled; Treaties are like consensual contracts. BUT, acceptance and consent dont account for everything: all states feel bound by custom. Thus even a newly emerging state is bound by CIL.

The modern view: no longer states as the only actors, thanks to human rights law, intergovernmental and non-governmental organizations and civil society all push intl law which in turn pushes states. (eg land mines) Louis Henkin, How Nations Behave: Law & Foreign Policy The Case of the S.S. Lotus (France v. Turkey) Intl Law permits what it does not prohibit

II. Sources of International Law A. Treaties o create legal obligations, with corresponding duties of compliance and entitlement to remedies including rights of retaliation in the event of a breach o International Law: int'l legal obligations (from Treaty or CIL) supersede domestic legal obligations, even a states constitution. A state cannot plead domestic law as an excuse for non-compliance. o US Domestic Law on Intl Law: Supremacy Clause: SCOTUS interprets to mean Treaties are equal to law of the land, and whichever is last in time trumps. (impt to understand how a given states domestic law gives effect to intl law) o States have a duty to make int'l law found in treaties they are a party to the domestic law if it isnt already. US Courts will use techniques of construction / interpretation to honor treaties over US laws where possible, ie where intent of Cong was not specifically to overturn the Treaty. FORMATION of TREATIES The Vienna Convention on the Law of Treaties (VCLT) (art. 2 & 11, CB p. 87) o Where states have not covered something in Treaty, the VCLT is a default/gap filler. o Provides background rules, attempts to stipulate to every contingency, so no ambiguity o Modern trend is for incredible specificity by states in Treaties. o USA has signed but not ratified the Convention but US cts frequently rely on its terms o Art. 2: States must be parties, the agreement must be governed by international law, and it must be in writing Restatement Sec. 301 o Since an internl agreement does not require consideration, the obligation may be wholly unilateral (peace treaty) BUT unilateral statement is not a treaty (p 97) BUT may be binding if the intent is present Today, updating int'l law tends to be done by UN bringing everyone together to conventions creating treaties. Treaties can: o Codify existing CIL o Tweak CIL, or tweak an older treaty the crystallization of new norms Treaties are only binding on signatories, but where a treaty codifies CIL, nonsignatories are bound to follow it as well. o Contract principles apply: Key Q: do the parties intend to be bound? Art. 26: good faith is a much more important principle here than in civil contract theory pacta sunt servanda: agreements shall be observed in good faith.

Consideration is not required: Can have unilateral obligations. States have great contractual autonomy, provided not contrary to public policy of forum. Always identify what T purports to do, who signers/non-signers are, and what specifically they commit to. Distinguishing Treaties from Political Commitments o Political commitments are soft obligations, not binding, not treaties. o NB: even though not binding, breach of a pol comm. may have worse consequences (on political relations, trust, coordination down the road, etc.) Obligation Not to Defeat the Object and Purpose (VCLT Art. 18) o Usually exec branch signs treaty, then awaits legislature to approve before it has the force of law o Article 18 : State may not commit acts against the treaty if: Signed the treaty, or subject to ratification, or has not made clear that it wont be a party Or it has expressed its consent to be bound o Example: US with the Rome Statute (p 93) Pres Clinton made it clear the US believed there were flaws in the treaty but never transmitted it to Senate; Bush Admin sent letter to UN saying no longer intended to become a party to the treaty Observance and Interpretation of Treaties (VCLT Art. 31 & 32, p.96) o Pacta sunt servanda GOOD FAITH assumed at core of every treaty o Article 32: look to Supplementary means of interpretation, such as prep work of treaty and circumstances of its conclusion, when general rule of interpretation (Art. 31): Leaves meaning ambiguous or obscure; or Leads to results that are manifestly absurd or unreasonable o Restatement Sec. 325 (p. 97) Reservations o Parties may wish to accept most of its obligations, but not all of them: Country might not agree with a provision, might not want to accept a dispute settlement provision. o Vienna Convention definition of reservation (Article2(1)(d)) A unilateral statement, however phrased or named, made by the State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to the State. o Reservations increase as difficulty in fashioning agreed rules applicable to all parties to an intl agreement increases based on growing number of parties to treaties. o Reasons for reservations: May wish to be a party BUT not yield to points against its interests not bind itself to certain procedural oblig i.e. compulsory settlement dispute make sure treaty obligations are compatible w particularities of local law preclude a treatys application to subordinate political entities in a fed system or foreign terrorist for which State would otherwise have intl responsibility VCLT Articles 19, 20, 21, 23 (p.101) o Article 19 No Reservations when:

Prohibited by treaty Treaty provides that only specified reservs occur Reserv is incompatible w the object & purpose of treaty o Article 20 Acceptance of and Objection to Reservs o Article 21 Legal Effects of Reservs and of Objections to Reservs o Article 23 Procedure Regarding Reservations Must be formulated in writing and communicated to all the contracting States o Declaration of the Netherlands & Declaration of the UK and Northern Ireland (p102) Termination and the Suspension of the Operation of Treaties (p.105) o Article 60: detailed criteria for getting out of treaty obligations (breach) If material breach of treaty: affected party may unilaterally terminate the treaty or suspend performance of its own obligations o Article 61: impossibility of performance as basis for terminating or withdrawing fr treaty o Article 62: Permissibility of terminating a treaty because of a fundamental change in circumstances (doctrine of rebus sic stantibus): fundamental changes cannot be invoked as grounds for terminating, unless existence of those circum constituted an essential basis of consent of the bound parties and; effect of the change was radically to transform the scope of obligations still to be performed under the treaty BUT 2 exceptions: o Cannot be invoked regarding the establishment of a boundary o Cannot be invoked if the change was the result of a breach Hungry v. Slovakia (ICJ 1997) (p.108) treaty regarding a proj on bordering Danube River Hungry: impossibility of perf and changed circumstances Ct: No impossib bc Hungry stopped working first Ct: No changed circum bc purpose of treaty not closely linked to political conditions Withdrawal from or Denunciation of a Treaty o Most recent treaties provide basis for withdrawal from or denunciation of treaty o Usually specify duration of termination and/or conditions that allow termination o If no provision regarding termination then Apply Article 56: Treaty is not subject to denunciation or withdrawal unless: Parties intended to admit the possibility of denunciation or withdrawal Right to denunciation or withdrawal may be implied by the nature of the treaty Jus Cogens (p.112) o Definition (Blacks): A mandatory or peremptory norm of general international law, accepted and recognized by the international community as a norm from which no derogation is permitted. A peremptory norm can be modified only by a later norm that has the same character. o Preemptory norms are not an independent source of int'l law

o So fundamental they bind all states o How to identify them is not clear, but they likely include: right to self-defense, prohibitions against genocide, torture, crimes against humanity, slavery, piracy, racial discrimination, and hostilities directed at civilian populations. B. Customary International Law & General Principles of Law FORMATION of CIL - Restatement Sec. 102 (p.116) CIL doesnt have to be universally followed (peremptory), but practice must be general & consistent. - International Law Association statement (p.122) - General practice accepted as law ICJ statute requires presence of 2 elements: - 1 State practice o Phys and verbal acts of States constitute practice, contributes to creation of CIL Battlefield behavior, use of certain weapons, national legislation, military manuals, official statements made Phys and verbal acts must be considered official to contribute to creation of CIL o Exec, legislative, judicial organs of State can contribute to formation of CIL o Practice has to be public or communicated to some extent At least should be communicated to one other State or intl org in order to give opportunity for other States to react o Intl courts are not part of creation of State practice technically because not considered state organs, but are included in the process anyway because the courts: Make determinations that CIL exists, and influence the practice of States and intl orgs that contribute to emergence of CIL o Intl orgs: although independent of States they contribute to formation of CIL Negotiation & adoption of resolutions by intl orgs Acts of the State involved Not binding in themselves but depend on degree of state acceptance o Assessment of State Practice Whether it is sufficiently dense to create a rule Must be virtually uniform, extensive, and representative Diff states must not have engaged in substantially diff conduct But it is enough that the practice is sufficiently similar Contrary practice does not prevent formation of rule if condemned by other States or denied by govt No need to be universal just general; depends also which States more so than how many No precise amount of time is required If all specially affected States are represented no need for majority but if they dont accept the practice cannot become CIL - 2 Opinio Juris - 2nd Requirement for rule of CIL Belief that such practice is required, prohibited or allowed, as a matter of law. Good description by ICRC page 118 o The principle that for conduct or a practice to become a rule of customary international law, it must be shown that nations believe that international law (rather than moral obligation) mandates the conduct or practice.

o May be inferred from acts or omissions. Whose Practice? Who is Bound? P.126 o States can react to new custom in three ways: Reject, Accept, or Silence. In Bush OLC memos on torture, argument that the activities were not torture. Had the effect of underscoring/reaffirming the existence of the treaty and the peremptory norm. Admitting to torture would have created an exception, which states would respond to. If states remained silent, would have effect of crystallizing emerging norm, risks creation of new rule of CIL BUT: torture is a peremptory norm, so in this example not possible for exception unless affirmed by entire intl community. o Persistent objector: If state is present at the creation of the norm, it can be a persistent objector if persistent and open from beginning of development of rule However, a state cannot be a persistent objector to a peremptory norm. o Creation of new rule of CIL depends also on density consistent, uniform practice by states, especially the specially affected states. o specially affected states (p. 126) depends on subject matter of the rule, some states may play a disproportionate role in creation of CIL if important actors in an area of activity do not accept the practice, it cannot mature into a rule of general CIL. Particularly important where a treaty might give rise to a rule of CIL that binds nonsigners. (eg US opposition to land mine treaty) open question The Effect of Treaties and Customary International Law p.129 o Restatement Sec. 102 o What is the treaty doing: defines relationship with non-signers Is it codifying existing CIL? Then even non-signers are bound. Is it making a completely new rule? Then if state renounces persistently, may not be bound. US has objected early and often to the Law of the Sea Treaty. o crystallization of new norms law of the see treaty is example of all three ways CIL formed: Treaty codified existing CIL Treaty crystallized emerging CIL Treaty created new provisions, creating new law Soft Law p.131 (political commitments) Handout: Read Introduction (pp. xxviii xlv) from ICRC study Customary International Humanitarian Law and letter from Messrs. Bellinger & Haynes to ICRCs President dated 3 November 2006 ( will be posted on MyWCL) General Principles of Law

C. Customary International Law in the United States PART OF US LAW:

- Const is silent about formation and domestic status of CIL - Const gives Congress power to define and punish offenses against the Law of Nations - CIL: obligations inferred fr the gen and consistent practice of states followed out of a sense of legal obligation (opinio juris). State practice may be found in state conduct, diplomatic correspondence, official statements, military and admin practice, treaties, judicial decisions, national legislation - Article I & III: involved in making cust internl law by the USA - Article VI: treaties are the supreme law of the land - Treaties preempt inconsistent state laws - Last in time rule: treaties can override earlier inconsistent [fed] statute - Admiralty or Maritime Law: Prize law: rights of persons to capture enemy vessels and cargoes during wartime The Paquete Habana Facts: Each vessel engaged in fishing along the Cuban coast; owned by a Spaniard born in Cuba; commanded by a Spaniard also living in Cuba; commanders entitled to shares and owned 2/3 of the catch. No arms or ammunition on board and made no resistance at time of capture. Each vessel was then brought into Key West and sold at auction Issue: whether the fishing smacks were subject to capture by the armed vessels of the US during the recent war w Spain Court looked to 500 years of practice, what today would be verbal acts or opinio juris Rule: CIL is part of US law and will be binding so long as we chose it to be. o Where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations o It is an established rule of international law that coastal fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing peaceful calling of catching and bringing fresh fish, are exempt from capture as prize of war. o Exceptions: Does not apply to fishermen w vessels for war purposes Does not apply to vessels who take whales or seals or only have salted fish Holding: The capture was unlawful w proceeds of sales of vessels and cargo restored to the claimant w damages and costs Take away: US will apply CIL as part of domestic law, but selectively. Difficult to invoke CIL directly against the executive or legislative branches, courts will invoke Paquete Habana! Filartiga v. Pena-Irala (2d Cir. 1980) (p.244) Alien Tort Claim Act (ATS = 28 USC 1350): creates original subject matter jurisdiction in the federal courts over all causes of action where an alien sues for tort only violation of law. Issue: does it also create a cause of action (or just jx)? o Could open US to being a court of claims for the world, which could also have foreign policy implications, particularly for our friends in torturing countries like S.A. Facts: death by torture of the son of a Paraguayan human rights activist, Dr. Filartiga, opposed to govt. Chief of police tortured and killed his son. Farther fled to US and filed claim for a violation of the law of nations while Pena-Irala was awaiting deportation (years later)

Court determined that torture was a tort in violation of the law of nations, cited CIL, but also and remarkably, cited the statute itself as implying a cause of action. extraordinary use of the ATS. Given domestic situation in P, could not require them to exhaust internal legal remedies. Distinguish between acts committed under color of official authority (suits against governments) vs. suits against individuals. Ct could have used Act of State doctrine, but didnt (likely because no foreign relations problem to worry about with Paraguay likely much different result if dealing with Saudi Arabia, for ex) For authority: Ct looked to Paquete Habana, then to circuit split, then to UN Charter, the Universal Declaration of Human Rights, law review articles, etc. They look at lots of soft law, not binding, also looked to American Convention on Human Rights (signed by Carter but not ratified, not binding). And, crucially, State Department wrote an amicus to the court saying torture proscribed P. 249: it is a strict test, torture is a peremptory norm and one of universal jurisdiction. Bottom line: o Paquete Habana looked to what states do/did. o Filartiga looked to opposite, relied purely on verbal acts, pointed to consistent renouncements of torture. All opinio juris. (the American Declaration of Duties & Rights of Man is the only binding international law on the US that prohibits torture that the ct cited) o Filartiga spawned huge amount of litigation, especially from latin America. In 1992, Congress passed the Torture Victim Protection Act, made express the implied cause of action found in Filartiga. must give the state in which the act occurred the opportunity to remedy, prior to relying on the ATS/TVPA. ATS can be invoked only by alien Ps; TVPA can be invoked by US citizens but it applies only when the D has acted under the authority of a foreign nation Kadic v. Karadzic (2d Cir. 1995) (p. 252) o ATS applied to private parties. Karadzic was president of self-declared, unrecognized Bosnian-serb rebulic. Mess in Yugoslavia. Pleading in alternative: is he head of state or rebel head of insurgency? o 3Hs: Extended scope of ATS to private individuals Private individuals, as well as those acting under the color of foreign law, could be liable under CIL and thus under ATS for genocide, war crimes, or other IHL violation Non-state actors could not be liable for torture or execution under the ATS, however, bc those acts, when not perpetrated in the course of genocide or war crimes, are proscribed by int'l law only when committed by state officials or under color of law. BUT: court also held that a private individual could be considered a state actor, and thus liable for claims like torture and summary execution that require state action, if the individual acted in concert with state officials or with significant state aid. PROBLEM: Kadic facilitated a waive of litigation against US corporations, held liable as private entities for their violations of international law (eg union-busting). Sosa v. Alvaraez-Machain (US 2004) p.253 (Mexican working for DEA v. accused Mexican torturer) AM helped torture a DEA agent. The US didnt follow its extradition treaty with Mexico, went in and had him rendered. Big problem. Other countries all of a sudden wanted to renegotiate their extradition treaties.

US district ct found no evidence that AM was involved in torture. So he sued US under Federal Tort Claims Act and sued Mexican national SOSA (worked with DEA to render him) under the ATS. SCOTUS determines ATS is largely jurisdictional. P. 261: court is concerned with private rights of action, leaves door ajar but sets a high standard, going back to 1789. Ct affirms Paquete and Filartiga stating must look at int'l law as it is at the time case filed. Test going forward: o Is there a violation of CIL o Does it meet the Sosa standard: serious violations of international law (like torture) Question 2, p. 265. Open question still wrt what meets Sosa standard, lower courts now addrssing FN 21 (p.261): even some cases that meet our standard may fail where foreign policy requires deference to the executive branch. Case is also an example of court doing whatever it wants on int'l law: ignores completely AMs claims that his abduction was in violation of int'l law, Universal Declaration, Intl Covenant on Civil & Pol Rights, etc. Court doesnt recognize that after 60 years, Declaration may have become binding CIL The Charming Betsy Canon and Statutory & Constitutional Interpretation p.267 o Only where there is ambiguity on part of congress, cts will, where fairly possible, construe US law/statutes not to conflict with int'l law or with an intl agreement of the US. o Where congress has been clear, cts will uphold Cong over int'l law. Ie Congress / POTUS may unambiguously chose to violate int'l law. Compliance with int'l law is optional.


International Dispute Resolutions A. Negotiation, Mediation, Conciliation, Arbitration (not tested on) - most intl disputes resolved peacefully through often creative means: o diplomacy, both bilateral and 3rd party initiatives o arbitration o intl adjudication has not been primary method of resolution bc states are sovereign so adjudication is always voluntary & slow w/less control: subjects resolution to 9 judges. o war B. International Court of Justice ICJ - NB: ICJ, not the ICC. States do not have criminal liability. - All states party to UN Charter automatically party to ICJ. - ICJ decisions are not int'l law. May be powerful evidence of CIL, but : o Not primary means of creating CIL and o Not primary means of resolving disputes - ICJ is like a civil system: no stare decisis, though precedent is still relevant. - 3 stages of ICJ cases: o Admissibility & Jx (preliminary ejections stage) supposed to be preliminary for jx, not a look at the merits. But often hard for Ct to separate, not look at the merits. See oil platform (USv. Iran) case as example of court having to look at the merits to determine preliminarily whether had Jx o Merits

o Reparations 2 areas of cases: o Contentious Cases: real disputes, only states may be parties; decisions are binding, though only binding on the parties (no stare decisis) But ct cannot specify how a state will give legal effect to it in accordance with states own domestic law. o Advisory Opinions: only to certain bodies of UN; come very close to being disguised contentious cases. Jurisdiction of the ICJ in Contentious Cases o Know difference between admissibility and jurisdictional issues: Admissibility: is it a political body, does it deal w/military issues? Then admissibility is key, for security council or political branches but not ICJ. Jurisdictional: Where one party has not accepted or granted Jx to the ct. Jxl issues tend to not be waivable. o Statute of the ICJ, Art. 36 o Jurisdiction by Special Agreement compromis (p 299) (Art. 36(1)) Once dispute arises, States may sign a compromis agreeing to submit matter to ICJ. Need not be a legal dispute. o Jurisdiction under a Dispute Settlement Clause in a Treaty There are over 300 bilat/multilat treaties with compromissory clauses, which amount to dispute settlement clauses. Ex: Treaty of Amity, Economic Relations, and Consular Rights Between the US & Iran Contained a compromissory clause, became issue in: Oil Platforms (Iran v. US) 1996 (p.301 o Jurisdiction under the Optional Clause (ICJ Article 36(2)) (p.306) Consenting in advance to suits that are legal against you. Must be a legal dispute Consent in advance, but states add reservations and insert exclusions. US controversially withdrew its acceptance of optional protocol in Art. 36(2) in for two years wrt Latin America in 1985 without required 6month notice (see Nicaragua v. US below), but countries continue to bring it before ICJ through compromissory clauses UK only permanent member of sec. council to accept compulsory jx of ICJ under 36(2), but did so with clever and valid exceptions. P. 307. Certain Norwegian Loans (France v. Norway) (p.308) NB your own reservation may be applied against you, applied to both parties. France espoused the claims of their nationals based on Ks French citizens had w/Norway. Citizens exhausted their remedies, France took it up diplomatically, then to ICJ. Norway filed a preliminary objection, based on notion of reciprocity applied to Frances reservation, excluding matters exclusively under French Jx! Norway successfully invoked Frances reservation against France (a selfjudging reservation) ct held no jx, dismissed the case If it is an invalid reservation, can court sever it? See p.310, #3 o Jurisdiction under the Optional Clause Applied: Nicaragua Litigation (Nicaragua v. US) p310

1984. Court played fast and loose to determine it had jurisdiction (one question was whether Nicaragua was a party to the ICJ. P.27 312/313) US also argued modification of their 36(2) acceptance. Ct again viewed JX at its most narrow, per Norwegian Loans, to depend on will of the parties. US: modification represents our will Ct: even though states may act unilaterally, may not do so where detrimental reliance. US estopped from modifying acceptance. Good faith underlies il See notes for full description of admissibility and jurisdictional issues raised Bottom line: US lost across the board, pulled out of 36(2); ended up a pyrrhic victory for the court. o Forum Prorogatum p.318 Procedure in the ICJ o Provisional Measures p.320 Statute of the ICJ Art. 41 PMs like an injunction under domestic law (used in La Grand case) Issue: are they binding? Tension between need for urgent action and consensual nature of ICJ. Ask: what is object and purpose of the Treaty? (p.321) Only 2 cts have explicit provisional measures ICJ and Inter-Am Comm for HR. all other cts interpret implied PMs. PMs were issued against both US and Iran in Iran Hostage case. Carters attempted rescue violated the PM. No formal damage but his SecState Vance resigned as result! o Admissibility Nicaragua v. US (see above) o Request for an Interpretation of a Judgement Statute of the ICJ Art. 60 o Advisory Opinions: UN Charter, Article 96 / Statute of the ICJ Art. 65 Not binding. Only 16 or 17 UN agencies authoried to seek them Increasingly look like contentious cases. Example: Israel (p.325-6) o Jurisdiction (see Nicaragua, above) o Discretionary Grounds for Declining to Give an Opinion

IV. Recognition of States and Governments (see notes) A. States and Their Governments - What is a state? Who Decides What is a State? o Restatement 201 1 Defined Territory 2 Permanent Population 3 Government 4 Capacity to conduct intl relations with other states - What is the Effect of Being a State? o Restatement 206 p.436 Being a state brings intl capacity (to make int'l law), rights & duties Non-recognized states are Ordinarily denied acces to US cts

Not entitled to property belonging to that State located within the US See notes just before 2/21/13 o Note on Holy See and Stat of Vatican City Who Governs a State? (recognition of government) p.438 o Recognition is a bilateral political act. But, if it IS a state (per definition above), you have legal obligations to them, even if you dont recognize them. P.434 o Traditional approach: Effectiveness of control Stability & permanence Popular support Ability & willingness to fulfill obligations o Tobar Doctrine o Estrada Doctrine (de factoism) (only new states recognized)?? o De jure recognition What is the Significance of Recognition of a Government? o Restatement 205 p.440 o Note on Special Status of Taiwan p.443 o Taiwan Relations Act When Governments Change, Who is Responsible for What? State Succession o Restatement 209 o Doctrine of governmental succession: says it doesnt matter, states still must observe treaties and intl commitments. But radically diff govts. o NISs: Clean slate doctrine (p.451) applies generally to Treaties made by colonial powers o Odious Debt doctrine: in the eye of the beholder. Who owns the debt when governments/states change? If determined odious, forgiven. See examples in notes. Difficult doctrine, poses many problems. Where do you draw the line? o Bottom line: p.450, #8

B. Territories and Other Entities - Puerto Rico - Trust Territory of the Pacific Islands V. International Human Rights & State Responsibility A. State (Civil) Responsibility for Injuries to Aliens p.721 - States are not responsible to other states or individuals criminally (unless they consent to ICC), but are so civilly. - National Treatment many states said foreigners would be treated same as nationals of state o but Western states werent satisfied, said state responsibility was part of CIL. - The Law of Diplomatic Protection (p.721): traditionally, state of the injured individual would take up the claim of the individual against the injuring state, providing its diplomatic protection however not the same as the individual having a claim. Claim belonged to the individuals state. - Restatement Sec. 711 (p.725) Responsibility for Injury to Nationals of Other States o Note 2A lists what states have been held responsible for

Law of State Responsibility: harmed individuals home state will take up the individuals claim o Not until 1940s was individual considered a subject with standing in int'l law. Individual could sue in foreign states, but often w/o effect. So fiction created: harm to individual is a harm to the state. o Biggest disputes tend to be over property (ie nationalization of an oil company) o Posits a minimum standard: Denial of Justice (p.724) West insisted on as a matter of CIL. Over time, states build up body of law of state responsibility wrt treatment of ppl Treatment of property is still disputed: takings, nationalization, expropriations o Each body, not just the executive, may be held responsible for violations, denials of justice. Each body generates the international responsibility of the State. o Procedurally and substantively, practice required by state responsibility has become part of intl Human Rights Law, mostly through consensual treaties. o Prior exhaustion of domestic remedies now a general rule in intl HRL Body of law has developed wrt exceptions to the prior exhaustion rule Only must exhaust remedies that are legal, not discretionary. Also, dont need to exhaust political/lobbying remedies, such as have legislature change law or take to the highest court if the latter already previously ruled against you in other litigation, etc. If normal process is corrupt o Problems: individual loses control of their claim; cannot force govts to take up their claim o When officials act in official capacity (on-duty), even where they exceed the official limits, the state will be held liable. Central govt held liable for acts of state at all lower levels. o HRL applies to all persons w/in a states Jx. And at same time, law of state responsibility also applies. So individual and their home state may have claims. Attribution of Conduct to the State o Many latin American countries refuse to accept the doctrine: aliens enter voluntarily, thus only entitled to the same treatment as nationals. o Gordon Christenson, p.728: 3 principles to separate state conduct from private conduct o States may be held responsible for failure to act, as in allowing private death squads. o Under what circumstances are the acts of a non-state actor attributable to the state? Effective Control Test: p.731. ICJ high bar burden is on plaintiff to show state exercised effective control over direct actions. Nicaragua v. US Overall Control Test: p. 732. ICTY lower bar, looser test: so long as group is under the overall control of the state, groups action is attributable to the state Human Rights Test: A state may be responsible for 3rd party acts if it effectively tolerates, condones, or acquiesces to those acts. Lowest bar to holding State acctble Query: under which tests were Taliban responsible for 9/11?. Not under 1 or 2, but possibly under 3. Which test employed depends on the forum/court Property Rights p.734 o Restatement 712 Link of Nationality citizen must have been a citizen of the state from time of injury through to remedies/conclusion of claim o Restatement 211

o Restatement 213 B. International Human Rights p.744 (see notes on this section) UN Charter and Universal Declaration of Human Rights The International Covenants Other Global Human Rights Treaties UN Human Rights System Customary International Human Rights Law o Restatement 702 o Human rights law internationalized how a state treats its own citizens - Role of NGOs - The US and International Human Rights Law o Ratification of Human Rights Treaties o Economic Sanctions o 22 USC 262d o Diplomatic Pressure o Domestic Litigation - Regional Human Rights Law o European System o Inter-American System o African System C. International Criminal Law (not on exam) - skim pp.1083-1098; pp.1127-1154 VI. Jurisdiction: Allocation of Legal Authority Among States p.639 A. Jurisdiction to Prescribe Public Law o Jx to Prescribe = jx to make and apply substantive law (civil & criminal) o Keep separate: 1. Did Congress intend to reach the conduct? Holmes: Presumption against extraterritoriality, (unless clear, cong did not intend to reach extraterritorially); and Charming Betsy Canon (an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains...) 2. What does int'l law permit? Lotus: permits what it doesnt prohibit Protective or objective territorial principle Passive Personality Principle o US domestic legal system has no in absentia proceedings, so even where jx to prescribe exists, may not have jx to adjudicate or enforce (eg terrorist in Syria, p.638) o US: presumption against extraterritorial application of US law (American Banana) o No problems would arise if no countries tried to apply their laws extraterritorially: causes potential concurrent jurisdiction, where several states have jx to make and apply law o Concurrent Jx: problems arise where conduct does not ocurr all in one territory.

o Principle of Reasonableness: Where conflicts arise, states should yield to the state with the greater interest. In practice, unclear how that operates. o The Lotus Case: Intl Law permits what it does not prohibit. No restriction on the exercise of jx by any state unless that restriction can be shown by the most conclusive evidence to exist as a principle of int'l law. What does int'l law prohibit? Look to Treaties and CIL (p.645 bottom) States lack of self-interests will be the practical restriction on the exercise of jx, wont claim jx over matters it has no interest in. US LOVES this case the more novel the claim, the less likely prohibited. Allows US to aggressively apply its laws, regulate the world. Flipside: the case came out at a very different time, when world was simpler. May not make sense today. Ct. points to conduct without (conduct on the French boat), having effects within Turkish territory (Turkish flagged boat). Territorial Rule: the normal working rule /basis for jurisdiction o US legislation is presumed to be territorial in scope. o Blocking and claw back provisions, p.649 o Who has valid prescriptional basis to apply their laws: (p.641) Objective effects of conduct Conduct without, effects within (LOTUS) Subjective territorial principle o Morrison v. National Australian Bank stands for proposition that US law will be presumed to be territorial unless Cong. Expressly says otherwise. P.650 o Restatement Sec. 403 (p.659) rule of reasonableness: extraterritorial application of law should be limited by an intl law rule of reasonableness. sec. 3: similar to Holmes Comity of Nations analysis (page 648.) a good faith effort must be made by both sides to resolve in favor of the state has the greater interest. o Hartford Fire Insurance Co. v. California Scalias dissent more accurately gets the law right today, produces analysis to use. Facts: London reinsurers said theres a conflict of law and bc they are UK Cos operating in London, on the basis of comity (deference to UKs superior interest) I: Whether the assertion of prescriptive (or legislative) jurisdiction by the US under the Sherman Act was reasonable in this case. Does the law even apply to the defendants conduct? If not, case isnt dismissed for lack of SM Jx, but ruled on the merits for failure to state a claim and the whole thing falls. Did congress intend for the Sherman Act to reach this kind of conduct, apply extraterritorially? Unclear For Souter (Majority) no doubt the act reached this conduct. Totally different approach Scalia: thinks congress could have reached the conduct, but did they intend to Two step analysis: (2 canons of interpretation or construction) 1. Presumption against extraterritorial application (but in this context, long established that Sherman Act can reach 2. Charming Betsy: an act of congress ought never be construed to violate the law of nations if any other possible construction remains, where intent of

congress is not clear. Where there is ambiguity, interpret statute so as not to violate int'l law, ie the principles of prescriptive jx. 3. Scalia then invokes concept of reasonableness in int'l law see p.660 quote from restatement (at top). Scalia: if its not reasonable, its not legal. Perfect sequential analysis. But, then he screws up the application, saying he cant imagine how cong could have intended for the act to reach it, despite that it seems reasonable thats exactly what they intended. If Scalia right, ct would instead decide the case on merits for failure to state a claim Take-away: Hartford shows how cts may use and cong may legislate however they want, wont be restrained by intl rules of jurisdiction; BUT, wherever theyre not clear, wherever theres ambiguity, there is a presumption against this Nationality Principle p.670 (see also state responsibility on page. 740) o Nottebohm case p.740 who may espouse a claim? Genuine link German national living in Guatemala. WWII breaks out. He moves to Lichtenstein for quickie citizenship. Then back to Guatemala. Guatemala interned him as a German national. Lichtenstein tried to espouse his claim. Ct. said no, no genuine link to Lichtenstein. o Corporate Nationality: p. 670-71 Most often, issues arise with nationality of corporations. P.741 Rest. 213 A US corp. may be reqd or compelled to set up & incorporate a subsidiary in country X in order to be licensed to operate in X country. If so, subject to Xs Jx under nationality principle. Otherwise, if doing business under regular name, subject to Xs jx under territorial principle. US, on other hand, has often pierced the veil so as to say US corp.s country X subsidiary is really a US citizen. This gets US in trouble. See implementing regs of Intl Emergency Economic Powers Act (IEEPA) p.671 person subject to the jx of the US includes (the last one is controversial): Individual who is a citizen or resident of US (nationality) Person within US (territoriality) Any corporation organized under the laws of the US (corporate nationality) Any corporation or association, wherever organized or doing business, that is owned or controlled by persons specified in the first three bullets. (Fruehauf) US has used latter to aggressively control trade and sanctions. US sanctions fulfill US foreign policy objectives, but other states, including allies, dont nec. want to further our foreign policies at their economic expense. o S.A. Fruehauf-France case p.672 Fruehauf (US parent) established a French subsidiary, maintained majority of shares, and Board was 5 Americans, 3 French. US Policy at the time (1965): isolate PRC/China. In order to trade with China, must obtain a waiver/license from US. US called in execs of parent co., ordered they rescind the K with Berliet of France. Latter to case to the French cts. French foreign policy was not to isolate PRC. Case presented a true jurisdictional conflict.

Resolution: in effect, the government of France itself carried out the transaction, letting Fruehauf off the hook. Example of US piercing the veil treating foreign subsidiary as US national. o Pipeline Sanctions case p.673 US extended Jx in an innovative way absolutely no link with US, but that the foreign subsidiaries used US technology in its manufacturing, licensed from a US company. Previously, depended on objective territorial principle (conduct without having an effect within the territory). But this came in the midst of the cold war. No Dtente yet. Wanted to make sure USSR didnt get any additional money But EU depended on gas/energy from USSR and EU was in favor of dtente US went one step further than Fruehauf, only link was technology used. EU took position US could not validly exercise jx. US relied on LOTUS case (int'l law permits what it doesnt prohibit) Provoked resignation of Al Haig (SecState). Before next SecState could lift sanctions, Sensor case came up. P.674 o Sensor case, p.674 (The Netherlands: District Court at the Hague Judgment in Compagnie Europeenne des Petroles S.A. v. Sensor Nederland B.V.) Court assesses, at 7.3 (p.676), the various possible bases for US jx, only to find nonoe apply. Ct rejects notoion that the US can use its foreign policy to dictate the behavior of non-US nationals. Effect would be to enlist foreign corporate citizens as soldiers in the fight for US foreign policy. Ct ordered specific performance. Shultz got sanctions dropped, but this case is still on the books so unclear area of law. NB: problem here, someone has to yield. In Hartford, compliance with US law wouldnt have caused insurers to violate UK law. But here, compliance with US law would have caused violations of Dutch law. o Congress and Cuba: Helms-Burton Act (1996) Cuba nationalized corporations, like casinos and hotels. After, invited foreigners (non-US) to operate the property. Helms-Burton Act, Part III: Property in Cuba, Litigation in America (p.679) designated the foreigners as traffickers in stolen property and went after them Considered a secondary boycott. Primary boycott is okay under int'l law; secondary boycott is less clear. Basically saying either you do business with us, or you do business with them. Act included a 6-month waiver provision and has been used by all presidents consistently, so Part III has never come into force. Part III was based for jurisdictional purposes - on effects doctrine. The foreign companies knew the property was confiscated so they were on notice. Lowenfeld counters that rationale: o anytime US citizen loses money, does that give US jx? o And Cuba caused the problem, so dont penalize 3rd parties. o And this prescriptive Jx is unreasonable by any standard (see Restatement on Reasonableness!)

P.683 #8 EU reaction: EU countries gave a claw back action to its nationals. If a US co brought an action against a Canadian co, the Canadian co would have a cause of action against US. Also shows: nothing in int'l law takes place in vacuum, makes sense w/o politics Protective Principle p.684 where seeking to protect legitimate state (US) interests o Restatement 402(3) a state has jx to prescribe law with respect to .certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests. Can be seen as a special application of the effects principle But different from effects principle because does not require effects in the US Distinction: Effects Principle: generally private, civil actions Protective Principle: generally criminal, where crime is committed immediately, ie with the printing of counterfeit currency. Currency doesnt have to make it to the US. o Ecample: counterfeiting could affect the integrity of government operations. o PP is growing, especially in area of terrorism. US invokes it where attempts are made against US interests. o US v. Romero-Galue (11th Cir. 1985) p. 684 (see RAS notes after Helms Burton) Marijuana on the High Seas Act Did cong intend to reach the conduct (possession by foreigners on foreign vessel on the high seas) Opposite of Scalia approach: this ct uses PP, uses int'l law (PP) to extend the US Statute criminalizing action. But bad case to demonstrate PP: what if all the pot was going to Canada, not US? Protective Principle only reaches things where an effect in the US Passive Personality o Restatement 402, comment (g). a state may apply law, particularly criminal law, to an act committed outside its territory by a person not its national where the victim of the act was its national. The principle has not been generally accepted for ordinary torts or crimes, but it is increasingly accepted as applied to terrorist and other organized attacks on a states nationals by reason of their nationality, or to assassination of a states diplomatic representatives or other officials. o Far more accepted today, along with Universal Jx. Partly a response to terrorism o Terrorism: see p.691, hostage taking statute A Treaty cant be basis for criminal convictions, so Cong codifies in statutes US is party to the hostages convention. But prosecution under terms of statute 18 USC 1203(b)(1) supported by multiple bases of prescriptive jx o US v. Columba-Collela (5th Cir. 1979) p.687 (see RAS notes) (poorly decided) I: did cong intend for statute to apply in this situation? Not can cong reach it, but did they intend to reach it? Court should have applied Scalias analysis from Hartford (something similar, since Hartford came later). Poorly decided because J. reasoned defendants acts were byond Congs power to reach, thus they could not have intended to reach it. Bad logic! Universal Jurisdiction p.694

o Restatement 404 Universal Jx to Define and Punish Certain Offenses: a state has jx to prescribe punishment for certain offenses recognized by the commity of nations as of universal concern, such as piracy, slavery, attacks on aircraft, genocide, war crimes, certain acts of terrorism, even where none of the bases of Jx in 402 are present. Not limited to Criminal law, though thats where most of these norms are. o No link to the parties is necessary, merely that they engage in the proscribed area o Whether cts can try the cases depends on home countrys willingness to pass laws criminalizing the acts. o Crimes of universal jx are usually established by treaty. Including for jx to try terrorists CIA agents tried in absentia in Italy for torture NB: p.697- Belgium had a universal jx statute, but NATO seated in Brussels. Bush Admin was frequently sued there as a result. US reminded Belgium that NATO could move, and Belgium gutted the statute. Most countries do not have statutes o Alien Tort Claims Act / Filartiga case essentially established a civil cause of action of universal jx (sue for violations of the law of nations). o Universal Jx & US Law Universal Jx is growing, particularly through Treaties like the Hostage Treaty that give multiple bases for jx. o So int'l law allows a state to create Universal Jx, but a state must then do it. B. Jurisdiction to Enforce (p698) - Assumes theres prescriptive Jx. Ex: pipeline sanctions. A state can only enforce a law it can validly prescribe. - Largely territorial. - Rule of reasonableness as limitation: p.699 - Restatement 431 - Restatement 432 - Restatement 433 VII. Sovereign Immunity and Other Immunities A. Sovereign Immunity - Absolute Theory of Immunity originally, immunity of states was nearly absolute, premised on sovereign state equality. Some state actions in nature of sovereignty: eg raising taxes but: - Restrictive Theory of Immunity (p.538) immunity will not attach when states acting in personal capacity (ie actions, like contracting, buying, selling, that can be done by individuals and states alike). o Jurisdictional issues, not merits issues. o Tate Letter 1952 p.538 supposed to adopt restrictive theory, but didnt really, inconsistent application to various states, politicized o Purpose test: state can justify anything it does. EG: state contracts to buy aspirin for troops. Nearly anything a state does, it will be able to say it is done for the purpose of state business. o Nature test (conduct test): FSIA codifies this approach: what was the nature of the conduct? Is what they did inherently commercial activity? o Prior to FSIA, cts deferred to Executive. - Sovereign Immunity is a doctrine compelled by int'l law

Sovereign Immunity is an affirmative defense, must be plead in timely manner, burden on defendant foreign state Prior to FSIA, no orderly process to sue a foreign govt. Gov would have to waive SI. o Most commonly: where property came under jx of another state, in rem seizure, foreign Amb. would then go to State Dep ask for a suggestion of immunity. In deference to separation of powers and conduct of foreign affairs, SCOTUS said what DoS suggested was to be law. So Executive Branch would adjudicate. File suggestion of immunity File letter recommending no immunity (Tate Letter p.538) Say/do nothing, leave to cts. But cts would just try to guess what DoS would do. o SI was governed by the Federal Common Law, made by Cts, that gave decision to DoS Foreign Sovereign Immunities Act (FSIA): (p.543 overview) o Essentially a jurisdictional statute, does not touch merits of the cases. o Makes all actions in personum jx. Prior to FSIA, had to seize in rem o Issues of congs intent arose. Did Congress intend for: 1. foreigners to be able to sue foreign states? (yes, Verlinden) 2. Act to apply to pre-enactment conduct too? (yes, Altmann) 3. foreign officials to be treated as foreign states? (no, Samantar v. Yousuf) o Verlinden B.V. v. Central Bank of Nigeria who may invoke FSIA? (p.544) Dutch corp. v. Nigeria Opened US courts to foreigners o Amerada Hess case (p.550) if you want to sue a foreign state, can ONLY invoke FSIA P. 551 highlighted paragraph: until and unless Cong creates an express exception, immunity is not waived and state cannot be sued. Entities Covered by FSIA p.552 o FSIA presumes immunity for Foreign states Political subdivisions Agencies or instrumentalities of the state (easiest to get Jx here than for state itself) o Dole Food v. Patrickson p.552 determine status of defendant at time of suit, not action o There is also a presumption of separation between acts of state and acts of subdivisions or instrumentalities. Can be overcome: Banec test (p.553). o Mohamed Ali Samantar v. Bashe Abdi Yousuf et al. (p.554) held cong did not intend to cover foreign officials in definition of foreign state for FSIA. Exception: for suits where not really suing the former head of state in a personal capacity but really suing state itself NB: CIL says cant sue sitting heads of state. Retroactivity p. 562 o Republic of Austria v. Altmann (2004) FSIA applies to pre-enactment conduct But put ball back into DoS court ((p565) Waiver Exception Counterclaim Exception Commercial Activity Exception p.570 n.8

o House Report No. 94-1487 o Weltover case p. 572 SCOTUS interprets definition of commercial activity o Saudi Arabia v. Nelson - Noncommercial Torts o Letelier v. Republic of Chile - Expropriation - Enforcement of Arbitral Agreements - Terrorist Acts o Murphy v. Islamic Republic of Iran - Immunity from Attachment or Execution o House Report No. 94-1487 o Section 1609: Immunity from Attachment and Execution of Property of a Foreign State o Section 1610: Exceptions to Immunity from Attachment or Execution o Section 1611: Certain Types of Property Immune from Execution - Current Status of FSI Outside the US B. Diplomatic and Head-of-State Immunities - Legal Status of Embassies and Consulates - Personal Immunity for Diplomats and Consuls - Head-of-State Immunity o US v. Noriega VIII. The Act of State Doctrine Historical Background Sabbatino Decision: Banco Nacional de Cuba v. Sabbatino, Receiver Limitations and Exceptions o W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp. The Act of State Doctrine in Other States

Federal Act of State Doctrine notes AoS is open to politics, so the history and politics of the time matter greatly Key question: what is the scope/applicability of the doctrine? To which acts should it apply? Exists in many countries In US, It is a judge-made doctrine, beginning with SCOTUS. Unlike jurisdictional FSIA (which always is raised first), AoS is a merits defense o Where it applies, the court does not abstain (not a political question, which is pre-merits, as suggested in Sabbatino), but rather the court decides the case on the merits, through application of foreign law, whereby the act of the foreign sovereign becomes the rule of decision in the case. (Ricaud) o Presumption that acts are valid Certain acts of a foreign state will be presumed to be valid and the court will not sit in judgement on them. Because its a presumption, the acts historically were expropriation. o Can also look at it as a special rule of conflict-of-law situations Court typically applies law of the state where the pricipal acts occurred or where the center of gravity of the act is. An exception to this rule is where the law chosen (a communist countries law on Takings) would violate an important public policy of the forum state (US allowing an expropriation of private P without just compensation, violates US Constitution) Available as a defense for private parties as well Early AoS: o Underhill: rationale was int'l law & intl comity o Involved FS taking P, where FS had prescriptive and enforcement jurisdiction based on the territorial principle ie the court would not sit in judgment on the validity of duly executed acts within the territory of the FS. o US has held a states expropriation of nationals P is not a violation of law o Technically, AoS did not apply to extraterritorial takings where the FS does not have prescriptive jurisdiction. Example: a state expropriates the P of an alien without the compensation the US understands to be required (____what compensation required?____). When the FS sells the property to someone in the US, original owner sues, claiming taking (the state act) was invalid bc o violates the public policy of the forum, or o violates FSs domestic law, or o violates CIL. The effect of the AoS doctrine is to preclude all of that, for fear it would be missued and out of respect for the useful fiction of the sovereign, equal states. rationale has changed and use expanded its almost an entirely different beast from original after Cubas nationalizations, court moved toward a rationale based in separation of powers o After Sabbatino, goal was to avoid embarrassing the executive in foreign affairs o DoS was complicit in growth unlike pre-1977 binding recommendations with FSIA, the recommendations for AoS were not binding by federal common law, but still influential given post-Sabbatino rationale for the doctrine

o After Sabbatino, the use of the doctrine increased tremendously. o In practice, the court treated the doctrine as a non-justiciable political question (but wrong to have done so!) Sabbatino: Ct changed rationale to constitutional sep of powers: dont embarrass the executive o Banco National de Cuba (BNC) sued Sabbatino in US Court to get them to hand over the money for the sugar. o BNC argued that the Cuban nationalization was an official Act of State and should be honored by the US. The Act of State Doctrine says that the propriety of decisions of other countries relating to their internal affairs would not be questioned in US courts. o Sabbatino argued that the Act of State Doctrine was inappropriate because: The act in question was a violation of international law, not duly executed; The doctrine should not be applied unless the Executive branch asks the court to do so; Cuba had brought the suit as a plaintiff and had given up its sovereign immunity. The Trial Court found for Sabbatino. BNC appealed. The Appellate Court affirmed. BNC appealed. The US Supreme Court reversed. o The US Supreme Court found that the policy of US Federal courts would be to honor the Act of State Doctrine. The Court found that the Cuban seizure did not violate international law, because there was no clear international opinion that a seizure of land or property in a country by the government of that country was illegal. The Court found that there was no need for the Executive branch to ask the courts to apply the Act of State Doctrine. The Court found that it should be assumed to apply because if even a single court made a mistake and failed to apply it, it could mess up US relations with other countries. The Court found that the Act of State Doctrine still applied, even thought the State was a plaintiff. It had not waived its right to the doctrine. Bernstein exception is discussed but implicitly dismissed by the court. (court doctrine, after all) o Court technically does not decide the issue. o Court might be open to a reverse Bernstein exception, but logic of majority rejects the standard Bernstein exception (p.623 bottom) o NB: in the Bernstein case, the letter was used to underscore how inconsistent US policy was with application of the doctrine in that case (dealing with Nazi acts). In Sabbatino, the letter amounted to no comment H1: Post Erie, the Ct wanted to preempt state cts from being able to do what fed cts couldnt, so made it a uniquely Federal Act of State doctrine, binding on fed & state courts. H2: p.621: very narrow, and carves out some exceptions: o Only applies to a current government recognized at the time of suit by US taking of property within its own territory o Treaties may validly supersede AoS

o A taking allegedly in violation of CIL will not prevent the application of the doctrine H2: will not examine the validity of a taking of property within its own territory by a foreign sovereign government extant and recognized by this country at the time of suit in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates CIL. CB p621. Ct viewed the case as a sort of non-justiciable international political question. Protects themselves in the name of protecting the executive, which is ironic because the DoS sent letters stating o P. 618 fn19: the department should not comment on matters pending before the courts Question: p.615 does Sabbatino court misconstrue Oetjen as applying AoS as a sort of political question doctrine, when really the pol question referred to in Oetjen was wrt the time at which the Mexican government was recognized? legislative reversal: So-called Sabbatino amendment constitutionally very unclear that Congress could overrule a court made doctrine founded on Constitution First National City Bank on creation of a Bernstein exception o Pre-1977 FSIA (and counterclaim exception) o Cuban bank sued First National for excess on sale of collateral o State department issued a Bernstein letter, saying doctrine should not apply, go ahead, no political problems. 5-4 vote that AoS doxtrine did not apply to prevent the US bank from using the counterclaim in US courts to challenge the Cuban expropriation of the US banks assets in Cuba. Basis of decision unclear though. Four different opinions. o Rehnquist (3 judges): follow recommendation of executive branch (sep. pwrs), stating they were adopt[ing] and approv[ing] the so-called Bernstein exception. (p.627). Also based opinion on principles of equity where a FS plaintiff is counter-sued, would be unfair to not allow the counterclaim on the grounds of AoS when the FS initiated the lawsuit in the US. o Douglas concurrance: declined to accept Bernstein, concurred in result based on equity o Powell concurrance: seemed to decline to accept Bernstein or equity: relied on very narrow reading of Sabbatino but are the facts not very similar? Or not so because its a counterclaim? o 4 dissenters: unequivocally reject Bernstein (makes for 5 or 6 votes against Bernstein) and the notion of equity. Instead, they said Sabbatino should control, and that the circumstances of the case raised a political question Plurality opinion accepted Bernstein, but only 3 votes. (two voted for the judgement but not the reasoning) Alfred Dunhill o Cuban cigar owners (sued Dunhill, FS stepped in, so) sued FS

o J. White: Narrow majority holding: the courts will require a formalized act of state (ie must be clear act is an actual act of the state itself) but dont spell that out, so easy to get around, State just needs to put out a decree or something similar. no statute, order, decree or resolution of the Cuban government itself was offered in evidence indicating that Cuba had repudiated its obligations in general or any class thereof or that it had as a sovereign matter determined to confiscate the amounts due three foreign importers. o 4 justices: Justice White part IV: wanted to create a commercial act exception to the AoS. the concept of an act of state should not be extended to include the repudiation of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities. o How can an illegal state action become the rule of decision in a US court? Thats why the original rationale required use only where duly executed acts. After Sabbatino, before Kirk, expansion of the doctrine to acts that: o Not took place in territory of the state o Not a taking of P o Where StateDep had great influence o Where StateDep didnt even weigh in o Cases with facts that looked nothing like Sabbatino (court made, so why not expand) Lots of inconsistency and confusion among lower courts. Doctrine looks like Swiss cheese. Harder and harder to sue foreign states Kirkpatrick Unanimous Kirkpatrick and ETC were both trying to win a construction contract in Nigeria. o ETC won by bribing Nigerian officials. o Bribery is technically illegal in Nigeria. Kirkpatrick sued ETC in US Federal Court for damages. o ETC claimed that since the contract was an official act of the country of Nigeria, suits in US Courts were barred by the Act of State Doctrine. The Trial Court dismissed the case. Kirkpatrick appealed. o The Trial Court found that the suit was barred by the Act of State Doctrine. o The Court found that a judicial inquiry into the motivation of a sovereign act might result in embarrassment to the sovereign, or constitute interference with the conduct of US foreign policy. o The Court found that allowing Kirkpatrick to make a bribery claim would require a finding that foreign officials were criminals, and that might embarrass the Executive Branch in its conduct of foreign relations. The Appellate Court reversed. ETC appealed. The US Supreme Court affirmed and allowed the case to proceed. o The US Supreme Court found that the Act of State Doctrine did not apply because nothing in the suit required a court to declare invalid the official act of a foreign sovereign. o "The Act of State Doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdiction shall deemed

valid." Scalia framed the issue: whether AoS bars court from hearing case where at issue is not the validity of an official act of a foreign sovereign, but a cause of action that requires possible (likely) embarrassment of the foreign sovereign. Scalia: Sabbatino suggested a balancing of the underlying policies of the AoS doctrine to consider when the courts should NOT apply it/accept the FS act as the rule of decision. So when if presumption that it applies and then ct can balance policies to see where it does not apply, thats okay with the court. BUT o Where not appropriate for expanding judicial incapacity to look at issues where the FS act is not directly or even indirectly involved. To state it again: o Where AoS is technically available (facts similar to Sabbatino), it is okay for Ct to use its discretion in NOT barring the suit by considering the policies underlying the doctrine and whether they would be served by barring the suit. o Where AoS is not technically available, no AoS. Thats the case here. The underlying policies are not a doctrine unto themselves. So: no AoS unless you have the factual predicate. Both lower courts assumed the case involved the doctrine because it might deal in embarrassment, and the DoS played a persuasive role, with each letter it sent. In all past AoS cases, the applicability turned on whether the court would have to declare an official act of a foreign sovereign invalid. NB: significantly, the court took issue with the AoS as an intl political question, instead stating when we apply the doctrine, we decide the case. A return to the good old days? Also NB: the bribe took place outside the territory of Nigeria. Back to old rule? The DoS asked the court to leave open the possibility of the doctrine applying in future cases where the case turns on motivation of the states act, not only validity. They could imagine situations where embarrassment and foreign policy could matter a lot o significantly, the court rejects this: will not turn the policy underlying the doctrine (embarrassment of executive) into an expansion of the doctrine itself.

NB: Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980) - Act of State doctrine does not here apply because this case does not ask the court to pass judgment on an act that occurred in Chile it asks the court to pass judgment on an act that occurred in the US